to defendants' requirement to prove they are not a risk of flight or a danger to the community. The clear and convincing language is stated only in § 3143(b)(1)(A) which discusses the risk of flight and danger to others. This standard does not apply to the substantial question factor of § 3143(b)(1)(B). Thus, the defendants do not have to prove by clear and convincing evidence that they have a substantial question of law or fact likely to result in a reversal or an order for a new trial. If Congress had intended the clear and convincing evidence standard to apply to both subsections (A) and (B) it could have easily placed the "clear and convincing" language under section (1) which applies to both subsections (A) and (B) or could have reiterated the standard in both subsections (A) and (B). Congress not having done so, this court will not interpret the clear and convincing standard any more broadly than the plain language requires. Subsection (B) must be analyzed under a preponderance of the evidence standard. See United States v. Butler, 704 F. Supp. 1351, 1352 (E.D. Va. 1989).
2. Substantial Question and Likelihood of Reversal
Thus, the remaining issue is whether defendants have shown by a preponderance of the evidence a substantial question of law or fact which is likely to result in a reversal or an order for a new trial.
The leading case in the Second Circuit interpreting section 3143(b)(1) is United States v. Randell, 761 F.2d 122 (2d Cir.), cert. denied, 474 U.S. 1008, 88 L. Ed. 2d 464, 106 S. Ct. 533 (1985). A substantial question of law or fact is "one of more substance than would be necessary to a finding that it was not frivolous. It is a 'close' question or one that very well could be decided the other way." United States v. Giancola, 754 F.2d 898, 901 (11th Cir. 1985), quoted with approval in United States v. Randell, 761 F.2d at 125.
If the court finds that a substantial question has been raised, then it must next determine whether the defendants have shown that the question "is so integral to the merits of the conviction on which defendant[s are] to be imprisoned that a contrary appellate holding is likely to require reversal of the conviction or a new trial." United States v. Miller, 753 F.2d 19, 23 (3d Cir. 1985), quoted in United States v. Randell, 761 F.2d at 125. The reversal must be likely on all counts for which imprisonment has been imposed. Randell, 761 F.2d at 125.
Setting the semantics aside, it is important to note that district courts are not being placed in a position where they are forced to decided if their own orders are likely to be reversed. As articulated by the Third Circuit in Miller, supra, to do so would undermine the practical effect of the statute. More specifically, the Third Circuit stated:
A district judge who, on reflection, concludes the he or she erred may rectify that error when ruling on post-trial motions. Judges, do not knowingly leave substantial errors uncorrected or deliberately misconstrue applicable precedent. Thus, it would have been capricious of Congress to have conditioned bail only on the willingness of a trial judge to certify his or her own error.